Skip to main content

Affirmative Action in Higher Ed Admissions Still Holds for Now, But Don't Get Too Excited . . . . (Fisher v. University of Texas at Austin)

I have to admit it -- I've been more interested in the U.S. Supreme Court's upcoming decisions on same-sex marriage and DOMA than I have been in the affirmative action in higher education case decided today, Fisher v. University of Texas at Austin.  When it comes to affirmative action in higher education, I guess I'm just battle weary.  I fully expect that, like the T-Rex testing the electric fence in "Jurassic Park," the opponents of affirmative action will, at some point, happen upon a persuasive theory and a receptive Supreme Court majority and do away with affirmative action.  I'm way past holding my breath each time an affirmative action in higher education case reaches the Supreme Court.

As you can imagine, I was pleasantly surprised that the Supreme Court didn't strike down affirmative action in higher education in its entirety.  This case came to the Supreme Court as a result of summary judgment solely on the issue whether the consideration of race in admissions violated the Equal Protection Clause.  The Court tacitly upheld the proposition of diversity as a compelling state interest in higher education as part of a university's education mission, which was posited by the late Justice Powell in Bakke v. University of California.  The inroad, if any, made by plaintiff Abigail Fisher was that the Supreme Court held that the courts below failed to subject the University of Texas' consideration of race to strict scrutiny to determine whether it was narrowly tailored enough to achieve the diversity objective, i.e., whether any other approaches that don't involve the consideration of race could also achieve the diversity the University of Texas was seeking.  The case was remanded to the lower court for that more searching inquiry into the University of Texas' admissions program.

Proponents of affirmative action believe they've dodged a bullet.

I say don't get too excited.

Writing for the majority, Justice (and Sacramento homie) Anthony Kennedy pointed out one very important thing:  The parties did not ask the Court to consider whether diversity in higher education is still a compelling state interest that would survive the strict scrutiny analysis used when the government bases a decision in whole or in part on race.  Justice Kennedy noted that the District Court and the Court of Appeals were correct in finding that Grutter v. Bollinger called for courts' "deference" to a university's judgment that diversity is essential to its educational mission.

Them Justice Kennedy pointed out the way for the next challenge: "But the parties here do not ask the Court to revisit that aspect of Grutter's holding."

And that is precisely why the proponents of affirmative action should not get too excited. 

The next challenge to affirmative action cannot succeed, IMHO, without taking down diversity as a compelling state interest in higher education.  Justice Kennedy has pointed out the theory - revisiting "that aspect of Grutter's holding" that a university's judgment that diversity is essential to its educational mission is due deference by the courts.  The only remaining hurdles are a receptive Supreme Court majority and some disgruntled applicant who thinks that some minority applicant "took" an admissions spot he thinks he should have had. 

Maybe I'm just too battle weary and cynical when it comes to affirmative action in higher education.  I can't help but think that the end of affirmative action in higher education will happen in my lifetime and we might as well get prepared for it.

I hope I'm wrong.



Popular posts from this blog

When You Leave The Ghetto, Don't Bring It With You

NBA player Gilbert Arenas brings a gun to an NBA locker room. NBA player Ron Artest lets his pit bulls run wild and free in Loomis, California while playing for the Sacramento Kings. NFL player Michael Vick did time for fighting dogs. And NFL player Plaxico Burress is doing time for shooting his damn self.

What do all these men have in common? BMNB would say an inability to make a profound paradigm shift. I’m less eloquent than BMNB is, so I’ll say it differently: The inability to leave the ghetto behind.

Yes, call me saditty, bourgie, elitist, stuck-up, whatever. I don’t care. Until you’ve had a tweaker ruin your Thanksgiving turkey, you don’t even know (more on that later), and I’m not trying to hear you.

Living in Western Placer County, my husband and I continue to hear stories from folks like us who had to flee “those who can’t leave the ghetto behind.” You know these people, and they come in all races. In our case, we had returned to Sacramento in 2004 and 2005, respective…

Hillary Clinton Can Stop Trump -- If She Releases Her Electors

Hillary Clinton isn't going to be President of the United States.  At least not yet.  And not in 2017.

But she can possibly stop Donald Trump from being President by releasing her pledged electors  in the Electoral College to vote for a compromise Republican candidate.

This is part of the strategy of the Hamilton Electors, members of the Electoral College who see that Donald Trump is not qualified to be President.  They argue that the Electoral College's role is not to rubber-stamp the popular vote -- which, in this case, would belong to Clinton -- but to serve as a check on the popular vote to make sure that no one who is unfit assumes the office of President.

According to the Hamilton Electors, named for Founding Father Alexander Hamilton (Yes, he of the very popular musical for which I can't get tickets) Hamilton stated that the Electoral College's test for fitness to be the President was as follows (and I'm quoting):

Election of a Qualified Person: As Hamilton s…

Malia's Hair is Off Limits! So is Sasha's!

I read a snippet of a New York Times article in which there was criticism of the hairstyle Malia Obama wore to Italy. Twists, to be precise. Said twists were criticized as not befitting someone representing the United States abroad.

Hold up. Slow your roll, America. You don't get a say in this. Neither Malia nor Sasha "chose" to represent the United States in any way, shape, or form. And their hair, and how they wear it, is off limits. Back the eff off.

I was hotter than a hornet reading this. The whole black woman's hair thing? That's personal with me. We black women have more than enough issues and neuroses about our hair and how we wear it. It is not open to debate within wider circles, especially when there's a child involved. The choices we have, other than wearing our hair in its natural state in twists, dreads, braids, cornrows or afros, are painful -- chemical relaxers, also called "creamy crack," and searing hot straightening combs. If Malia …